Introduction 

The right of workers to associate and bargain collectively is the most basic building block for labor organization and the ability of workers to assert their own interests effectively in the workplace. It is one of the fundamental or "core" rights of human beings at work identified by the International Labor Organization ^[1] and set forth in both the 1948 Universal Declaration of Human Rights ^[2] and in core ILO Conventions ^[3] as well as codes of conduct. ^[4] Some company codes of conduct go beyond declaring workers' rights to free association and collective bargaining, expressly instructing factory management not to interfere with workers who "lawfully and peacefully associate, organize or bargain collectively." ^[5]  

Measuring for the presence or absence of free association and collective bargaining in a specific factory is one of the hardest measurement tasks in the labor standards field, because there are many different and often indirect and subtle ways in which this right can be infringed. Even a management action as direct as the firing of workers who try to establish a union, as occurred for example in the well-publicized case of the Kukdong International garment factory in Atlixco, Mexico, in January 2001, will have other potential explanations, such as management's claim that the workers in question were fired because they had stolen garments. ^[6] At the same time, reliable measurements in the area of freedom of association can be uniquely valuable, since they can provide strong signals about the likelihood that other rights of workers are being respected and that violations are being reported.

Measurability issues 

The unique measurement difficulties and unique potential value of measurements for freedom of association make this a primary area for attention in the measurement process. 

The potential value comes from the fact that freedom of association tends to be correlated with the overall health of workers' rights in any given location. The right of workers to associate and bargain collectively with their employer is often described as an enabling right, providing workers with key tools to assert their rights as well as to improve their wages and working conditions generally. Once organized, workers are also likely to be more effective observers and reporters of all types of violations of their rights (see Monitoring), meaning that violations are more likely to come to the attention of independent monitors. Measurements for freedom of association and collective bargaining therefore have the potential to compensate for weaknesses in the direct measurement of violations in other areas of workers' rights. 

The unique difficulties for measurement in this area come from a mix of practical and legal factors. In practical terms, what workers perceive as their degree of freedom to organize, and to approach management collectively, is as important as any formal procedures or actual meetings or membership. Yet intimidation of workers can block effective measurement of what their perceptions are (see Monitoring). 

Legal restrictions on union membership, organizing, and the like are an important part of the context for measuring freedom of association, with the restrictions and therefore the context varying from country to country. Different legal contexts make it essential to give different weighting to different factors affecting freedom of association, and in some cases may require the use of different units of measurement. For example, formal trappings of organized labor which can be readily measured, such as the presence of a union in a factory, do not always correlate with freedom to organize. The state-imposed union in factories in China is an obvious illustration. But in many cases, distinctions between real and sham forms of labor organization are subtle and can turn on intuitive, "know it when I see it" judgments. Such judgments are especially difficult to capture in clearly defined measurement units. 

In political as well as practical terms, freedom of association occupies a special place as the most fundamental of workers' rights. Many view it as the single essential right for workers, from which other rights flow and without which other rights are illusory. Some who share this perspective see the effort to create and implement voluntary codes of conduct as hurting rather than helping workers' rights. They argue that these codes create an illusion of rights protection and are distracting attention from the overriding need for workers to organize in unions. From the same perspective, some critics view the effort to measure factory compliance with codes of conduct as usurping what should be a strictly union function. In identifying and applying measurements for freedom of association, this skepticism over the impact of voluntary code efforts is an important perspective. Others take a more positive view of codes of conduct as a vehicle to promote freedom of association. They argue that outside scrutiny and evaluation of workers rights conditions can create new opportunities for workers to organize themselves, especially in relatively closed societies. 

Controversy also colors a key definitional question. Where independent labor unions are explicitly barred by law, or effectively blocked by government, employer-sponsored structures such as staff associations or worker-management committees may be offered as providing some degree of compliance with code standards for freedom of association. These so-called "parallel means" have the potential to provide some opportunity for worker voices to be heard in the workplace. At the same time, they can be and often are dominated by the employers that sponsor them. Whether to assess the role played by these structures in the workplace (positive, negative, or both) is an important issue for code compliance monitoring, since in many workplace locations the option of independent labor unions is foreclosed by law or state action. 

The controversy can be starkly stated. Where independent unions are prohibited by law, should management-sponsored participatory structures be measured for their relative effectiveness as vehicles for workers to organize and defend their rights? Or should measurements of freedom of association be taken solely in terms of workers' ability to form and join an independent trade union? Should the process of evaluation for compliance with code standards acknowledge some scale based on best practices in "parallel means" - in the many cases where independent trade unions and collective bargaining are effectively barred -- in order to distinguish better from worse practices, even when the best practices possible would still fall far short of the international standard? Or does consideration of even the theoretical best of "parallel means" corrupt the very concept of freedom of association, by suggesting that a degree of freedom of association can exist in the absence of union opportunities? (This controversy relates to the larger question of whether responsible corporations should operate at all in countries where law or state action denies workers their rights as recognized in international law). 

Labor organizations and management often have strong, and strongly opposed, views on this subject, which play out in disputes over measurement criteria. What is not open to dispute is that international standards unambiguously include the right of workers to form and join trade unions in order to pursue their own interests. Measuring workers' ability to do so should always be a central focus of measurement efforts in this area. No one concerned about protecting and advancing workers' rights argues that the issue of freedom of association should be ignored, or that its baseline, the right to form and join an independent trade union, should be set aside. But improved assessment of the role played by management-sponsored participatory mechanisms can also contribute to the broader picture of compliance with fundamental rights. Trying to measure the role of "parallel means" as a voice for workers (or, in contrast, their use to impose more effective control), creates a basis for evaluating relative compliance by employers with the norms of freedom of association, even if compliance is necessarily low on a scale which recognizes that full respect for freedom of association requires true union opportunities. Including such measurements can create some incentive for improvement in the workplace where otherwise there would be none.  

Current strengths 

Current practice tends to focus on asking general questions about complex and subtle issues, such as "Does management allow workers to organize and join trade unions?" [record 333] or "Can labor conditions be negotiated?" [record 760]. The problem lies in getting answers that reliably reflect actual practice in the workplace. In general, the worse the situation is for freedom of association, when workers are intimidated, the less reliable such units of measurement are likely to be. 

The most basic measure of freedom of association in the workplace is whether employment is conditioned on either not joining a union, ^[7] or having to join a union that is not representative of workers' interests. ^[8] Questions about those conditions on employment are straightforwardly asked. So are questions about retaliation by management for union activity, threatened ^[9] or actual, including firing of individuals, ^[10] use of force, ^[11] production cuts, ^[12] and plant closings. ^[13]  

Current practice recognizes that sham unions, acting against workers' interests instead of for them, are a problem that needs to be addressed. Current units of measurement cover whether the union is working with the local police to intimidate workers, ^[14] whether the terms of a collective bargaining agreement are no more than what workers are already entitled to under local law, ^[15] whether management signed a collective bargaining agreement with a union that most workers did not support, ^[16] and whether workers are satisfied with the union that they were required to join. ^[17]  

Collective bargaining agreements, in the relatively few cases where they exist, are well measured, undoubtedly in part because they represent tangible documents that can be inspected and analyzed. Not only their existence ^[18] and availability for inspection by a monitor ^[19] but also workers' access to copies, ^[20] possession of copies, ^[21] and familiarity with contents is checked (although not probed). ^[22] Two particularly solid units of measurement are the percentage of the work force that is covered by a collective bargaining agreement, ^[23] and the percentage of the work force that has accepted individual workplace agreements. ^[24] These are pieces of data that can provide useful comparisons among factories and measurement of trends in any one factory or group of factories over time. 

The important element of workers' perceptions is measured by questioning workers directly. Workers are asked about interference with their freedom to organize, ^[25] including awareness of retaliation for union activity, ^[26] their sense of management attitudes toward unions, ^[27] fear of being laid off first if they join a union, ^[28] having their promotion chances reduced, ^[29] and even their fear for their lives. ^[30] Other measurement techniques include polls asking workers about their satisfaction with existing union arrangements. ^[31] Such questions need to be asked in carefully non-leading fashion, and in ways that minimize the risk of intimidation and maximize the opportunity for candor; (see Monitoring - Measurability Issues). Intimidation also needs to be checked for independently; (see Monitoring - Current Weaknesses). 

Although units of measurement for workers' ability to associate and organize are usually cast in general terms, thus avoiding sensitive issues of definition, ^[32] one quite specific and tangible unit of measurement receives strong attention: whether workers have a private space onsite in the factory where they can meet ^[33] and maintain offices. ^[34] This by itself is one potentially useful indicator of management support for workers' right to associate, which can be crosschecked in management interviews as well. ^[35]

Current weaknesses 

As discussed in Measurability issues above, the question of "parallel means" of freedom of association (where union organizing or collective bargaining is restricted by law, codes of conduct sometimes call for employers to support other ways for their workers to associate and bargain, known as "parallel means") is particularly troublesome.   Current practice is hesitant about defining what those "parallel means" might be in enough detail to support reliable measurement, instead asking questions about "parallel means" ^[36] without defining the term. 

This in part reflects lack of consensus. It also reflects the controversy over whether non-union approaches to labor organization should be even be considered in the context of a right to free association (see Measurability issues above). Current measurement units tend instead to focus heavily on activities explicitly relating to unions, and on whether management is inhibiting such activities or not. ^[37]  

Union-related measurement units add little, however, where union-related activity is restricted by law. For those cases - which are many - current practice ^[38] centers on other, ambiguously defined forms of ostensible labor organization such as "other independent worker representation," ^[39] "workers' organizations," ^[40] and "workers' representatives." ^[41]

Although a few units of measurement applied to unions are also being applied to some of these "parallel means," ^[42] it would be a significant measurement advance to do so more systematically. The measurement criteria already being applied to test the independence and representativeness of unions could be adapted and applied with equal thoroughness to purported alternatives. In doing so, measurement practice would need to be careful in every case to identify the presence of obstacles to independent trade unions, legal or otherwise, and to acknowledge that such obstacles represent a violation of fundamental workers' rights to freedom of association under international standards notwithstanding any alternatives that the employer may be sponsoring. 

Even apart from "parallel means," current practice in the area of freedom of association tends to fall back on questions phrased in general terms, which duck key definitional issues, ^[43] more than it does in other areas of workers' rights. Using evasively phrased units of measurement ^[44] simply shifts ambiguities onto the shoulders of monitors, rather than grappling with them, and greatly reduces the likelihood of consistent measurements being taken from one factory to another or from one monitor to another.  

Current practice also tends to ignore the possibility that concepts of free association may be so unfamiliar to workers that the workers themselves may not understand what their rights are in this area. Only one unit of measurement addresses the education of managers ^[45] in this area. Having their rights posted ^[46] or provided ^[47] in the factory is virtually meaningless if workers don't grasp what "freedom of association" or "bargaining collectively" means; so is asking workers if their rights in this area are being impeded. ^[48] Whether workers are being educated to understand their rights is a subject that receives special attention in other areas, such as health and safety, ^[49] abuse and harassment, ^[50] and non-discrimination, ^[51] but none in freedom of association. 

Strikes and work stoppages are the subject of a number of current measurement units, ^[52] but none of them is designed to show if a strike or stoppage reflects positively on free association in the factory, or negatively. The same is true for the absence of strikes or stoppages. Workers are not systematically asked about the implications of strikes or stoppages that have occurred, and only one measurement unit even seeks workers' opinions in the context of strikes. ^[53]  

Intimidation and obstruction of union activity can take many forms. Current units of measurement cover a number of specific types of threats, but not the potential general threat that is implicit in managers asking workers about their union activities or views. Whether managers bring up the topic with workers in the first place is likely to be easier to measure than whether a particular conversation amounted to a direct threat. 

Best current practices (selected) 

·        Getting the basic statistics: percentage of union members in factory, ^[54] by category, ^[55] compared to percentage in the country as a whole; ^[56] percentage covered by a collective bargaining agreement; ^[57] percentage covered by non-collective agreements; ^[58] number of unions present in factory; ^[59] number of work days lost to labor dispute; ^[60] amount of union dues. ^[61]

·        Probing for retaliation against union activity. A wide range of retaliatory practices are recognized: not just outright firing ^[62] and blacklisting, ^[63] but threats to fire individuals; ^[64] more generally targeted threats to employment in the form of reduced production ^[65] or closed factories; ^[66] and harm short of outright firing such as cancellation of seniority, ^[67] heavier workloads, loss of transportation, ^[68] and being targeted for later layoffs. ^[69]

·        Tracking documents. Where collective bargaining agreements exist, their distribution and workers' understanding of their terms is well measured (see Strengths above). So are records of interactions between workers' representatives and management, where they exist, ^[70] including both meetings ^[71] and management's responses to issues raised. ^[72]

·        Reality-checking in worker interviews. The existence of worker representatives and committees may or may not reflect genuine representation. As a check, current practice not only asks workers for their subjective beliefs ^[73] and fears ^[74] about labor-management relations; it also includes tests such as whether workers actually know who their own ^[75] and management's ^[76] representatives are; whether they know what management's responses are to issues raise by their representatives, ^[77] and whether they have actually met with union representatives ^[78] or attended union meetings in the factory. ^[79]  

Possible improvements suggested by analysis  

1.      Track basic statistics over time (e.g., union density; coverage of collective agreements) to see trends.

2.      Compare factory statistics to company norms (e.g., all factories in the country used by the company; all factories used by the company worldwide), not just to country norms.

3.      Use confidential worker polls, not just interviews, to gauge workers' attitudes (including fear levels) about their ability to organize and bargain collectively. Pollsters should use multiple-choice format and questions in scale form (for example, "on a scale of 1 to 5 . . .") and track responses to the same questions over time.

4.      Test workers' understanding of freedom of association rights in both polls and interviews, with consistent format (see item 3. above) so results can be tracked over time.

5.      Test workers' satisfaction with their representatives (union or otherwise), again with consistent format so results can be tracked over time. Correlate with length of employment, age, gender, wage level, etc. Note that in this instance the results would presumably need to be kept confidential from factory managers and supply agents, to prevent the results from being used to try to get rid of legitimate unions and effective representatives.

6.   Follow subsequent history of selected individuals who have tried to organize, with earmarked extra resources set aside to evaluate discipline, rate of earnings, and/or dismissal of any of the selected individuals within a 24-month period from their most recent involvement. Make sure the selected workers can contact monitors at any time, e.g. by mail or email.

7.  Deter retaliation by informing management in advance that this following of monitor-selected individuals (item 6. above), whose identities will not be disclosed to management, will continue regardless of monitoring follow-up on other issues.

8. Systematically adapt and apply units of measurement now being applied for union-related activities ^[80] to "parallel means" activities where union activities are restricted by law or government action. More of the questions now being posed on the relationship of unions with management could be applied to the relationship of non-union worker organizations with management. ^[81] Similarly, attitude surveys on worker satisfaction with their trade unions ^[82] could be adapted to survey worker confidence with "parallel" forms of labor organization (with similar attention to the risks of leading questions, intimidation in the interview process, etc. ^[83] ).

9.      Determine whether managers have asked any workers about their union activities or their views on union matters. Also, determine if there is a policy in the factory forbidding managers from doing so.